The Innocence Project’s Poster Child with a Past

June 1, 2011

In 2006, a judge ordered the release of Alan Newton after 22 years in prison when a DNA test on a rape kit exonerated him. The rape kit had been misplaced by the New York City Police Department for a decade. The dramatic tale received high-profile press coverage. The Innocence Project—which specializes in using DNA tests to free the wrongly convicted—and Newton’s attorney, John Schutty, got well-deserved plaudits for their work on Newton’s behalf.

Newton had protested for years that he was innocent, filing motion after motion, seeking NYPD records, asking for help from anyone who would listen. Lots of inmates claim to be innocent, of course, but the DNA test, not available at the time of his 1985 conviction, proved it in his case.

Last fall, a federal court jury found his story so sympathetic that it awarded him $18.5 million for his ordeal. In that civil trial, police officials admitted to problems with the NYPD’s evidence-storage system, including the existence of hundreds of unaccounted pieces of evidence. How many other people, critics ask, have been wrongfully convicted and can’t prove their innocence because property has been mishandled? Alan Newton certainly wasn’t the first or only person in that position.

In the years since his release, Newton, who was a bank teller and business trainee before his arrest, has obtained a college degree, gotten a job counseling students for the CUNY system, and applied to law school. Now 49, he appears to be living a peaceful life after so many years locked behind steel doors.

Though a judge recently overturned the huge financial award (his lawyers are appealing), his well-publicized story remains an extraordinary tale of a wrongful conviction finally overturned after more than two decades.

But there is another part of the story that has, until now, remained entirely absent from the media coverage. Court records show that Newton was convicted of not one, but two sexual assaults in the spring of 1985.

One case involved the 1984 rape and slashing of a 25-year-old woman—identified in court records as “V.J.”—in an abandoned building in the Bronx. It was in that case that the 2005 DNA test exonerated him.

Newton was also convicted in 1985 for the attempted rape of a nine-year-old girl, identified in court papers as Erica G. After a short trial, he was found guilty in that case on May 6, 1985. The very next day, May 7, he went on trial for the rape of 25-year-old V.J. A jury convicted him on May 20, 1985.

He was sentenced in both cases on May 31, 1985. He got up to 11 years in prison for the attack on Erica G., and up to 40 years for the attack on V.J., those totals to be served consecutively.

While his conviction for raping V.J. was eventually overturned, the conviction in the attempted-child-rape remains, despite his vigorous attempts over the years to overturn it, too. In fact, that conviction was forcefully upheld just this past December 23 by Bronx Supreme Court Judge Richard Lee Price. It’s not another matter of a missing or misplaced rape kit being tested to prove his innocence, according to the judge’s ruling. Newton has long sought to have the child’s sweater examined, contending that it may have evidence that would clear him, but Price called that only “speculative.”

Newton may very well have been wrongly convicted in the attempted rape of Erica G., as he and his lawyers argue. But the judge who heard his most recent appeal didn’t agree, and he said so in the strongest terms.

Price’s decision got no coverage at all, and there has still been no mention of the attempted-rape conviction in media outlets (which we extensively searched) or in the Innocence Project’s publicity campaign or background material on Alan Newton. The selling of Alan Newton, by the Innocence Project and in his speaking appearances and by media outlets, as an innocent man, has never mentioned the Erica G. conviction—not even to argue publicly that it, too, was wrongful and that he is still fighting a righteous battle for exoneration.

“The problem is it shifts the focus away from what is important, which is how many people have had their DNA evidence lost who may have been exonerated,” says Newton’s lawyer, Schutty. “It also takes away from the character of Alan Newton. He is a very good citizen. He got his degree. He’s a career counselor. He’s going to law school. He’s not had a stitch of trouble. This blip on the radar screen—it doesn’t fit.”

The Innocence Project’s portrayal of Alan Newton, who hands out awards on behalf of the group and makes speaking appearances about his wrongful conviction, is no different from its other publicity campaigns about the people it has helped free—except for not mentioning the other case in which he still stands convicted. The City of New York’s attorneys certainly didn’t want to hide the Erica G. case, but in Newton’s civil lawsuit against the city, the judge rejected their attempt to bring it in. “In the civil case,” Schutty says, “the jury was told there was another felony conviction, but not the nature of the crime or the details.”

State court judges have always rejected his appeals.

There are similarities between the cases. They both involved single-witness identifications. There was no other evidence to tie him to either crime. Both cases involved evidence misplaced by the NYPD.

The prosecutor in both of Newton’s criminal trials, Andrea Freund, is now a civil lawyer who in part handles wrongful-arrest and malicious-prosecution cases. The Voice asked Freund what it was about the little girl’s testimony that swayed the jury.

“Her honesty, forthrightness, her simplicity,” Freund says. “She was a young girl who purely told what happened to her, who did it, and what she knew to be true.” She declined further comment.

On the other hand, V.J., the victim in the case that was eventually overturned, had admittedly consumed a lot of alcohol at the time she says she was raped.

The Voice asked Bronx District Attorney Robert Johnson whether Newton’s exoneration in V.J.’s case raised questions about the case involving the little girl. The D.A.’s Office wound up readily admitting that it was wrong in the case against Newton for the rape of V.J. But regarding the Erica G. case, Johnson told the Voice, “The district attorney’s belief is neither the standard nor relevant. Alan Newton was found guilty by a jury of his peers without legal error.”

Schutty contends that “the D.A. hasn’t addressed the issue of the proof against Newton, which is a single eyewitness with no corroboration. The two cases were tried back to back—same judge, same prosecutor, same defense attorney. The evidence in the Erica G. case was so weak, it probably would not have proceeded to trial without the second case.”

In a court affidavit filed during one of his appeals, Newton wrote, “I have yet to climb out from under the remaining unjust conviction—for the attempted rape of the 9-year-old girl. I will use every remaining breath in my body to establish that I am not now, and have never been, a child molester.”

So why did no one on Newton’s team mention the second conviction and his ongoing attempt to overturn it while they publicly celebrated his innocence in the other case?

“Talk to John about that case,” Newton told the Voice, referring to his lawyer, Schutty. “Neither one of them is legitimate.”

Asked why he hadn’t mentioned the Erica G. case in public comments following Newton’s release, Schutty tells the Voice, “The reason we didn’t raise the conviction is because there was a pending motion to vacate, and a motion to reargue. We had a very strong belief that that case would be overturned, too. While that motion was pending, we didn’t see the need to talk about it. All of this is a matter of public record. We did not try to keep it secret.”

A lengthy profile of Newton in the New York Times in October 2006, just a few months after his exoneration and release from prison in the V.J. case, contained no reference to his other conviction and made a point of saying that “as had been proved incontrovertibly, he did not commit the crimes that made the prisons of New York State his home for more than decades.” The word “crimes” referred only to the various charges in the V.J. case.

Like all the other stories on Newton, it neglected to say that part of his years in prison were for the Erica G. attack—a conviction that has not been overturned and has not been hidden from view by the court system. Newton was sentenced in both cases on the same day in May 1985, and court records in the Erica G. case are readily available.

Nor do any stories since his release point out that the Innocence Project worked to help him try to overturn the Erica G. conviction. The Innocence Project itself made a decision not to bring up that case publicly during Newton’s exoneration on the V.J. case, says Vanessa Potkin, its senior staff attorney.

“Both our office and the D.A.’s Office at the time felt it would be an unfair focus,” she says. “Alan was being exonerated for a crime he proved he didn’t commit, and to bring up the other case, which also has serious problems, seemed unfair. . . . We’re totally confident that if he got the DNA from the other case, he could prove his innocence for a second time. And it speaks volumes that the D.A.’s Office didn’t put this case in the forefront.”

Potkin says the Innocence Project also did work on the Erica G. case. “We were not only aware of it, but we also tried to help him challenge it through DNA,” she says. “At the time, I also made requests through the District Attorney’s Office for the Erica G. evidence. At the time of his exoneration, those efforts were under way, and the Bronx D.A.’s Office and we didn’t feel it was relevant to bring to the forefront.”

She adds, “There was blood found on her sweater. The huge tragedy about [the Erica G. case] is that there is biological evidence, but unfortunately we can’t test it to prove his innocence because once again the city can’t find it. . . . This is a classic misidentification situation, but unless a second miracle happens, we’ll never have the evidence to prove it.”

Any news organization could have learned from a routine check of court records that, even after the exoneration, Newton still stood convicted of attempted rape. Potkin says she can’t remember whether any news organizations were aware of the second conviction.

The story of the rise, fall, and rise of Alan Newton begins in 1984, a dark time in the annals of New York City. Violent crime was off the charts. Crack cocaine and heroin were destroying entire neighborhoods. There were 1,450 murders, 3,800 rapes, and 80,000 robberies that year, according to the NYPD. Last year, the NYPD says, there were 536 murders, 1,370 rapes, and 19,000 robberies.

It was in 1984 that a man named Bernhard Goetz shot and wounded four teenagers who menaced him on a subway train. Goetz, known as the “subway vigilante,” came to be seen as a symbol for New Yorkers’ frustration over the crime rate. The NYPD, meanwhile, was still reeling from mass layoffs. Police officers ran from from one serious crime to the next, simply trying to keep their caseloads under control.

Newton was 22 years old at the time, living at 1330 Webster Avenue in the Bronx with his mom, sister, and two brothers. He had landed a job as a business trainee with the New York Telephone Company, after previously working as a bank teller with the Dime Savings and Manufacturers Hanover banks. He seemed like a man headed somewhere in life.

On May 27, 1984, nine-year-old Erica G. was assaulted by a man on the roof of the same Webster Avenue building where Newton lived. She told police that she encountered a man in the hallway of the 20th floor. She initially described him as dark-skinned, with a small mustache, and a distinct scar on his face. At trial, she said she had seen him before. (Newton and his attorneys have always challenged the accuracy of the identification and how the police obtained it.)

When she turned away, she said, the man grabbed her, put a gag in her mouth, and carried her to the roof. She struggled, she said, and she scratched one of his hands. On the roof, he shoved her to the ground, and ripped off her pants, stockings, and underwear. Just as he began to take off his pants, a woman’s voice called out.

The man told Erica G. to stand out of the way. Erica G. said the man didn’t allow her to turn around to see his face while on the roof. When she finally turned around, he had disappeared. She took off her sweater, tied it around her waist, and sprinted, crying, back to her cousin’s apartment.

She picked Newton’s face out of a book of mugshots—at age 18, he had been previously arrested and pleaded guilty to assault for a fight with another teenager. A year later, at trial, she would identify him to the jury without hesitation.

Newton told authorities that he had an alibi: He was at home, and his mother, one brother, and a neighbor would testify to that.

Following the arrest, housing police officers wrote up a summary of the case and transmitted it to the Bronx sex-crimes unit.

On June 23, 1984, less than a month after the attack on Erica G., 25-year-old V.J. entered a bodega near Third Avenue and 180th Street to buy a beer while on her way to an ex-boyfriend’s apartment. As she left, a man who was in the store followed her out, grabbed her, put a razor to her throat, forced her into a car, and drove her to Crotona Park. He raped and sodomized her and fled. She looked for a cab. But the man returned, grabbed her again, and took her to an abandoned building. There, he raped her again and blinded her in the left eye with the razor. She passed out. He took her cash and left.

At the hospital, doctors treated her and collected hairs and bodily fluids from her, including semen. She described her attacker as about 27, five-foot-seven, 160 pounds, with a short Afro and mustache. She said he was physically large and his name was “Willie.”

Bronx sex-crimes detectives, aware of Newton’s arrest in the Erica G. case, showed his photo to V.J., and she identified him as her attacker both in a photo array and a lineup. The clerk in the bodega also identified Newton as the man in the store.

Like Erica G., V.J. also exhibited some uncertainty about her identification of Newton. She identified him in a pre-trial hearing, but also called the prosecutor a week before trial and said she was “not sure” if Newton was her attacker.

Alan Newton was now charged in two violent felony cases. From the start, he maintained that he was innocent of both sex crimes.

About a year later, on May 1, 1985, Newton was tried in the case involving the attempted rape of nine-year-old Erica G. The trial took five days. Other than Erica G.’s testimony, there was no other evidence to tie Newton to the crime. The only piece of physical evidence introduced—that sweater with blood on it—was never tested for blood type. Nor was Newton’s blood tested. (At the time, DNA testing did not exist.)

In other words, no one tried to figure out whether Newton’s blood type matched the blood on the sweater. Newton’s previous defense attorney tried to suppress Erica G.’s identification of Newton, but the judge rejected that motion. Judge Jerome Reinstein ruled that even if the identification was “suggestive,” Erica G. had seen Newton on two prior occasions in the lobby of her building, and she saw the side of his face as he dragged her to the roof during the initial part of the attack.

At trial, his previous attorney did not present a case. Newton’s three alibi witnesses—his mother, his brother, and a neighbor—weren’t called to the stand by his lawyer, and Newton didn’t testify on his own behalf.

Despite the lack of corroborating evidence, a Bronx jury deliberated five hours and found Newton guilty of first-degree attempted rape and endangering the welfare of a child. He was sentenced to 10 years (a minimum of three and a third years) for the attempted rape and one year for endangering the welfare of a child, the terms to be served concurrently.

On May 7, 1985—just one day after he was convicted in the Erica G. attack—Newton went on trial for the rape of 25-year-old V.J. That trial lasted some 13 days and once again relied mainly on one ID: V.J.’s identification of Newton.

Newton testified that he went to a movie in Brooklyn with his fiancée, her daughter, and relatives, and went to his fiancée’s Queens home. The fiancée and her daughter corroborated his testimony.

Once again, a Bronx jury found him guilty. Newton was sentenced to 25 years (a minimum of eight and a third years) for first-degree rape, the same term for first-degree robbery (those sentences to be served concurrently), with 15 more years (a minimum of five) tacked on for first-degree assault.

Oddly, the jury found him guilty of the attack on V.J. in the abandoned building, but not guilty for the attack in the park. This, even though V.J. testified that the same man had raped her in both places that night.

Newton now faced a potential total of 51 years in prison. In effect, his life was over. But not long after he reached prison, he began separate campaigns to overturn both convictions.

The act of trying to obtain a different result via the appellate system is difficult and time-consuming. Jury verdicts carry a huge amount of weight. Success generally requires clear and convincing new evidence, a devastating flaw in the original verdict, or unequivocal prosecutorial or judicial misconduct. As was later extensively reported after Newton’s exoneration, he had stubbornly filed one appeal after another to overturn the conviction in the attack on V.J. He also filed a relentless series of Freedom of Information requests and inquiries, seeking case documents and, most importantly, access to the rape kit.

DNA testing was first admitted as court evidence in 1987. Newton started asking for access to the rape kit. The city actually did test the rape kit in 1988 and found no semen. However, Schutty says, the technician made a mistake. The semen was there on microscope slides.

It took six more years for Newton to be allowed another shot at testing the rape kit. Beginning in 1994, and stretching for nearly 12 more years, police and prosecutors repeatedly claimed the evidence could not be found despite diligent searches. In 1998, he was told that the rape kit was “most likely destroyed.” The NYPD then claimed that records that would have confirmed destruction of the items were themselves lost in a summer 1995 fire.

Newton kept at it. In 2002, he filed yet another Freedom of Information request, which was denied on procedural grounds.

For years, the NYPD repeated its claim that it either could not find the rape kit or that it was “most likely destroyed.” Moreover, the police department claimed it could not find tracking invoices that would have led them to the location of the rape kit. In the end, Newton was extremely lucky that the DNA evidence was finally found through the work of a conscientious lawyer in the D.A.’s Office, Elisa Koenderman, now a judge in Queens Criminal Court. It was right in the exact location where it should have been.

In fighting the conviction involving Erica G., Newton pursued a similar path. He obtained a new lawyer and alleged that the prosecutor, Freund, had committed misconduct during closing arguments. That appeal was rejected in 1988.

Newton began learning the law while in prison and filed two motions on his own in 1989 claiming that trial counsel had been ineffective. Those motions were denied, as was a motion in 1991, this time attacking the judge’s comments from the bench. In 1991, he once again filed a motion alleging his trial lawyer had failed to represent him well by failing to allow him to testify and failing to call his alibi witnesses. That motion was denied.

In 1993, yet another motion to reargue the case was denied. In 1995, he asked for a writ of habeas corpus in federal court under the alibi grounds, and claimed that the judge improperly spoke with Erica G. while she testified. That was denied, too, in 1999. Prosecutors even got one judge to order him to stop filing new motions.

Newton had now been in prison for 14 years and had filed no fewer than seven motions to overturn the Erica G. conviction. He filed another one in 2002, which was denied. He also began trying to get information on the bloody sweater the little girl had been wearing. No luck there, either.

Fast-forward now to 2005: He gets his big break in the conviction involving V.J. A Bronx prosecutor looked through her files on the case and found an invoice with a location for the rape kit. In fairly short order, Bronx prosecutors agreed to allow a DNA test. The test exonerated him, and by June 2006, he was a free man. He filed a lawsuit against the city for intentional negligence.

Instead of giving him, at the very least, the meager support that convicts get when they’re released from prison, Newton got nothing, no help, from the Department of Correctional Services, he says. He had been in prison so long he had never even used a cell phone, let alone a MetroCard. In a recent interview, he noted that he was released without even access to the programs that typically assist convicts after prison.

“If I came home under parole status, the DOC would have been under some obligation to assist me—whether housing, medical, education,” he says. “When you are exonerated, you are kicked out the door. They don’t want to lend any help or assistance. They just back away from you as far as accepting any responsibility.”

His prison sentence had lasted 22 years, and it was over. But along with pursuing a case against the city stemming from the V.J. case, he still pursued his claim of innocence in the Erica G. case.

But all of his attempts have failed.

The Bronx D.A.’s Office insisted that Erica G.’s identification of Newton was strong and untainted by influence, but a defense expert hired by Newton’s team who reviewed the case file many years later concluded that police had violated their own procedures in questioning Erica G. The defense team hired Saul Kassin, who teaches at John Jay College and Williams College and often questions the value of single-eyewitness testimony in the absence of any other evidence, to look at the Erica G. case. He concluded that Erica G.’s identification of Newton was unreliable.

“There have been more than 200 DNA exonerations, most of them proving the eyewitness testimony was inaccurate,” says Schutty. “So DNA shows us how often eyewitnesses are wrong, especially when you don’t have corroboration.”

Finally, there had been nine other sexual assaults near 1330 Webster Avenue in the three months before the two attacks that had been linked to Newton. At trial back in 1985, the judge had refused to allow Erica G. to view a photo of the man responsible for those attacks. Schutty now argues that the girl should have been able to look at the photo.

Meanwhile, as the judge reviewed the legal back-and-forth, the Bronx D.A. and the NYPD started to look for the bloody sweater that now appeared to be Newton’s best—and perhaps last—hope to win his appeal. The search failed.

“The only evidence linking Newton to the first assault was the ID of a nine-year-old who was clearly influenced by family,” Schutty says. “And then you don’t lose the biological evidence.”

Newton’s lawyers filed a motion asking for the invoices for the NYPD’s storage of the sweater, and asking the court to overturn the conviction because the case was weak, Newton’s orginal lawyer was suffering from emotional problems during trial, and the NYPD had lost the sweater. In addition, his lawyers pointed out that Newton had made something of himself since his release. And they argued that the victim had suffered no long-term trauma from the attack—that argument wound up carrying no weight with Judge Price, who called it “wholly unsupported,” adding, “Conspicuously absent from his fifty-page motion supported by numerous exhibits that include affidavits of defendant’s improved character and condition, is any affidavit or statement from the victim to corroborate [the victim’s current status].”

As for the missing sweater, the NYPD reported that it couldn’t be found and that it “was likely disposed of.” This claim was similar to the claim made about the missing rape kit in the V.J. case, in which the NYPD had said the kit was lost, when, in fact, it was right where it was supposed to be.

Whether the sweater would make a difference is unclear. Many years after his conviction, and long after he had served his time on that case, Newton wrote, “The blood on the sweater may contain DNA that would establish that some stranger (not me) attacked [Erica G.] that day.”

But Judge Price, in rejecting Newton’s appeal this past December, wrote, “There are two significant distinctions between the missing rape kit and the presumptively destroyed sweater. Unlike the DNA evidence extracted from a rape kit that excluded the defendant as a source of the semen recovered from the victim [25-year-old V.J.], the presence of defendant’s blood on the sweater from which DNA evidence may be extracted is, at best, speculative.”

Last fall, as Newton had awaited that decision from Price, his civil lawsuit against the city for losing the rape kit in the V.J. case for 11 years went to trial in federal court. The central issue would be whether the city was intentionally negligent in failing to find the rape kit for so long.

The police department stores some 10 million items in offices and warehouses spread around the city in a system including the massive Pearson Place facility in Long Island City. The system handles about 1.6 million invoices per year.

Of course, the responsibility for tracking that sheer volume of items is difficult and complicated. But in the year 2011, a time when computer scanners and bar codes are commonplace in Walmart and Rite Aid stores all over the country, it is shocking to learn that the NYPD still relies on ledger books, black ink, typewriters, and carbon copies to track that volume of material.

The problem of lost or misplaced evidence and property has cropped up repeatedly over the years—in large and small cases—leading to lawsuits, overturned convictions, and mind-bending bureaucratic delays.

In his civil lawsuit, Newton was able to show that NYPD property officials were destroying records of its tons of evidence without following regulations and without keeping records of that destruction. He was also able to show that there was a lack of training and knowledge of police procedures in the division.

During the trial, one police witness admitted that he found hundreds of items in a satellite warehouse for which he could find no paperwork. Other police witnesses admitted there were numerous occasions when the paperwork couldn’t be found.

“What blew our case open was the sheer incompetence in the property division,” Schutty says. “[The evidence] was in a location that, if procedures had been followed, would have been located. They misplaced the paperwork. What the police department has done is hide the fact from many criminal defendants that they can’t find property or paperwork.”

A key problem was that, before 2006, property clerks were destroying key invoices that would have helped track the location of a given piece of evidence without checking first with prosecutors. Several NYPD witnesses testified that there was no real training prior to working in the unit, and five of them said they had never seen the police department’s procedural manual on handling property.

“If you’re going to have a paper-based evidence system, your people have to meticulously apply the procedures,” Schutty declared at trial. “Because if a paper is misfiled—game over.”

A supervisory sergeant in the Bronx property office testified that between 2005 and 2009 he repeatedly ran into problems producing evidence stored there. Over and over again, the logbooks that held the all important dates, storage numbers, and locations were unavailable. He said on the stand that he couldn’t find complete logbooks dated prior to 1987.

The sergeant testified that he had hundreds of items of evidence for which he had no paperwork. He admitted that he was able to procure requested evidence only about 20 percent of the time. He also testified that there are thousands of vouchers dating back to the 1970s that either were not fully processed or the items were never returned. At one point, he said, he found a stack of crumpled invoices dumped in a cardboard box.

“When you say ‘unavailable,’ you mean ‘missing’?” Schutty asked, according to the court transcript.

” ‘Not here,’ ‘I don’t know,’ ” the sergeant replied.

The sergeant testified that he did find two invoices that helped Newton, but he only found them through luck, in an unmarked box. The evidence that those invoices led to contained no DNA.

“The real shocking thing is there is no rule requiring the preservation of criminal evidence,” Schutty says. “The only reason he is out of prison is that they found that piece of evidence. Think about the poor souls still in prison, for whom the evidence can’t be found, and they have no recourse. They are out of luck and there’s nothing they can do.”

“To be truthful, it wasn’t surprising,” Newton says of the civil trial. “I suspected the left hand didn’t know what the right hand was doing. The trial verified what I was thinking all of these years.”

The jury did find in his favor, and it did order the city to pay him $18.5 million, but the city immediately filed a motion to set aside the verdict, and earlier this month, U.S District Judge Shira Scheindlin agreed, wiping out the huge penalty.

The judge acknowledged that the NYPD’s evidence-storage system was “disorganized” and “inadequate,” but she ruled that Newton had failed to prove that the city’s negligence in losing the evidence was “deliberate” or “intentional.” Moreover, the city, she ruled, made reasonable efforts to find the evidence. Schutty says he plans to appeal her ruling to the Second Circuit Court of Appeals.

Newton sees the contradictions in his case. “The most simple way I can put it,” he says, “is if the city is willing to solve cold cases with DNA, wouldn’t the same assumption be used to prove innocence with DNA?”

But he argues that that would not be in the city’s best interest. “They fight it so hard,” he says. “It makes you think that if you don’t want to correct a wrong that happened 20 or 30 years ago, maybe you’re doing the same thing right now.”